“With Friends Like These . . .”: New Critiques of Graham and Miller

The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade. Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder. I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller. Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another). Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.  

Fondacaro’s article, Rethinking the Scientific and Legal Implications of Developmental Differences Research in Juvenile Justice, 17 New Crim. L. Rev. 407, begins by noting an important gap in the scientific literature on which the Supreme Court relied. Graham and Miller were premised on the view that adolescent offenders have less culpability than adults who commit the same crimes because adolescents tend to be more impulsive, more drawn to risky behavior, and more susceptible to peer pressure than adults. The two decisions were also premised on the assumption that these sorts of psychological deficiencies are more readily fixable in adolescents than adults. However, Fondacaro observes, the scientific literature does not really make the comparison that the Court is trying to make: “[T]he bulk of the available research does not compare the psychological, psychosocial, or neurobiological functioning or development of adolescents to adult criminals—the identified developmental differences are typically based on comparisons of noncriminal adolescents to noncriminal adults.” (420-21)

This gap in the research matters because criminals of all ages tend to exhibit distinctive patterns of thought and behavior:

[T]he types of criminal behaviors committed by both juveniles and adults, particularly those who commit felonies, are often not the product of normative development but of abnormal adolescent and adult development—the kinds of psychological and behavioral patterns that would routinely be covered in a textbook on abnormal psychology rather than developmental psychology. Moreover, even within the field of normative developmental psychology, many modern textbooks would be more likely to take a life course developmental perspective, where personal identity and character are conceptualized as dynamic and multifaceted, subject to ongoing change and contextual influences, rather than as a fixed and unchanging end-state reached at the age of eighteen, or even twenty-five, thirty-five, or beyond. Moreover, the abnormal psychology textbook would not only describe the development of aggressive and criminal behavior, but would draw on research from the disciplines of clinical and community psychology describing the extent to which various interventions at the psychological, biological, and social levels of analysis could bring about behavioral change for both adolescent and for adults. (417)

In short, Fondacaro suggests that adult offenders may tend to have the same sorts of psychological deficits as those that drive juvenile crime, and that adult offenders may be no less amenable to treatment than their younger counterparts.

For Fondacaro, the implication is not that we should get tougher on juveniles, but that we should shift our approach to punishing adults. He argues:

[R]etribution is based on a commonsense, folk psychology model of human behavior that does not withstand scrutiny. Retributive justice is based on the presumption that people have the individual capacity to freely choose their behavior, and that when they break the law, they could have chosen to do otherwise and deserve to be punished in proportion to the harm that they caused. The law, and the retributive system it reflects, assumes that almost all behavior for which people are held criminally responsible is the result of a choice to do wrong. It is this ability to choose whether or not to obey the law that serves as the justification for retributive punishment. As scientific research on environmental and biological influences on behavior progresses, more and more of the variance in illegal behavior is accounted for by these interacting forces. . . .

. . .

Consequentialism [Fondacaro’s preferred approach] is aimed not at moral judgment and punitive payback but at recidivism reduction, crime prevention, and prospective behavior change. That does not mean that punishment is irrelevant to this regime, but the goal of punishment is quite different from the goal of retribution. The goal of punishment is not payback but prospective behavior change toward compliance with the law. That means that if punishment is not seen as an end in itself (just desert), but as a means to an end (prospective compliance with the law), then it becomes one of several available instruments of behavior change. Moreover, the particular instrument of behavior change chosen should be driven by considerations of efficacy and effectiveness. (433, 435)

While Fondacaro uses his criticisms of Graham and Miller as the starting point in what becomes a plea for fundamental reform of the American criminal justice system, the second author, lawyer Jamie D. Brooks, seems far more concerned with preserving the core values implicit in basic Anglo-American criminal law doctrines. Brooks agrees with Fondacaro that the Court has overstated the adult-juvenile distinction, and that taking the Court’s dubious culpability analysis to its logical conclusion would call into question retributive punishment for adults no less than juveniles. While Fondacaro would welcome such a destabilization of current approaches–indeed, he fears that the Court’s recent “juveniles are different” jurisprudence may actually do more to legitimize than delegitimize the retributive paradigm–Brooks seems more interested in preserving traditional notions of moral responsibility in the criminal justice system.

Brooks’s article, What any Parent Knows” But the Supreme Court Misunderstands: Reassessing Neuroscience’s Role in Diminished Capacity Jurisprudence, 17 New Crim. L. Rev. 442, observes a fundamental flaw in most attempts to establish diminished culpability for an offense by drawing a connection between the offense and some biological process or other in the offender’s brain (such as the incomplete development of certain areas of the adolescent brain). If the argument is that the offender’s conduct is excused simply because it has a biological basis, this proves too much–all conduct has a biological basis, and so no conduct would be truly blameworthy. Brooks writes:

To maintain a coherent concept of diminished capacity, courts must resist the instinct to regard the neurobiological underpinnings of an offender’s behavior as per se excusatory. For if the law embraces this ‘‘fundamental psycho-legal error,’’ it succumbs to a reductio ad absurdum whereby it cannot hold any actor fully accountable for his conduct, because brain states precipitate the choices of all actors independent of their level of culpability. (459)

Regardless of their biological basis, some choices have a negative moral dimension, and it is not only appropriate, but may even be beneficial, to attach blame to them. Of the science relied on in Graham and Miller, Brooks argues:

The cited studies, which establish the neurobiological underpinnings of juveniles’ immaturity and recklessness, their susceptibility to environmental influences, and the evolving nature of their moral character, only confirm behavioral propensities that would be obvious to any parent. Yet, the Supreme Court neglects another principle that any parent would know: when children demonstrate poor judgment, those charged with morally educating them reprimand them precisely because this behavior reflects a moral defect for which the minor ought to be held accountable. By contrast, the Supreme Court employed studies that medicalize these quintessential features of youth in order to externalize these character faults and exculpate the minor from blame. (444)

As science continually enhances our understanding of the neurological abnormalities that cause crime, Brooks thinks that the legal system should distinguish the abnormalities that are morally neutral from those that are not. Her article

seek[s] to propose a novel solution [to the challenge posed to criminal law by neuroscience] by discerning discrete principles of mitigation from the existing criminal doctrine of excuse. After analyzing several criminal defenses, it argues that only impairments of morally neutral capacities such as rationality (and, to a lesser extent, volition) ought to diminish culpability. The law cannot, however, coherently mitigate an offenders’ culpability to reflect diminished moral capacities without contravening the doctrine’s core retributive understandings of desert. (445)

In the end, Brooks is not convinced that juveniles’ neurological limitations are of the morally neutral variety. She does not think that Graham and Miller are defensible within the retributive framework that both decisions emphasize, but she does hold out the possibility that the cases could be justified if the Court expressly adopted a more rehabilitative orientation (as Fondacaro would urge).

As a parent myself, I am much struck by Brooks’s observation that parents understand the limitations of their children, but also think it appropriate to attach blame to some of things that their children do. True enough. But I think good parents also try to be very selective and restrained in their blaming, and to provide opportunities for children to atone for their missteps. This points to the parts of Graham and Miller that seem most compelling to me. The Court’s analysis turned partly on the diminished-culpability reasoning that Fondacaro and Brooks find so problematic. But it turned just as much on a recognition that LWOP is an extraordinarily severe sentence that should be used almost as sparingly as the death penalty. Graham, in particular, speaks powerfully about the need to provide offenders with an opportunity to atone for what they have done. This, too, should be part of the moral calculus of punishment.

Cross posted at Life Sentences Blog.

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